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Louisiana is one of eight patient-compensation-fund states in the country.
Patient compensation funds (PCFs) are pools of money established by state law and
formed by surcharge payments from doctors to provide additional funds to pay the
amounts required by court decisions in excess of established insurance limits and
spread the risk of million-dollar court decisions across a wide number of doctors.
Louisiana’s fund was created in 1975—during the nationwide malpractice insurance
crisis, where costs were skyrocketing and availability was dwindling—by the state
legislature’s passage of Medical Malpractice Act 817 in order to guarantee affordable
medical liability coverage was available to all healthcare providers as well as
provide a stable source of compensation to victims of malpractice.
In Louisiana the medical malpractice insurance companies provide the first $100,000/$300,000
limits of liability. The LA CAT Fund (LPCF) provides the next $400,00/no aggregate,
plus unlimited future medical payments up to the $500,000 cap. If higher limits
are purchased and the fund does not respond then the primary insurer pays up to
the purchased limit or the next $900,000/$2,700,000.
The Louisiana Medical Malpractice Act (MMA) was comprised of three effective
components:
- the MMA capped non-economic medical malpractice damages at $500,000;
- created the state’s patient compensation fund (PCF), which paid claims in excess
of $100,000 and covered medical expenses for injured patients during the course
of their lifetime;
- established a medical-review-panel process where a three-physician board provides
the claimant and accused physician an opinion on the medical care provided.
Since its inception, the Louisiana Medical Malpractice Act has been a lightning
rod for trial lawyer challenges and has been amended several times. Most recently,
on Sept. 27, 2006, the 3rd Circuit Court of Appeal ruled that the Medical Malpractice
Act’s $500,000 cap on damages was unconstitutional because it “failed to provide
an adequate remedy to today’s severely injured plaintiffs,” violating the Louisiana
Constitution’s guarantee of adequate remedy.
The case was appealed before the state Supreme Court, and, on Feb. 2, 2007, the
Louisiana Supreme Court vacated the 3rd Circuit’s judgments, ruling that the issue
of adequate remedy was never properly before the courts, and therefore could not
be legally ruled upon by the 3rd Circuit. The Supreme Court also remanded the cases
back to the 3rd Circuit.
The 3rd Circuit ultimately vacated the ruling of the trial court that deemed the
medical malpractice cap constitutional, remanding the case back to the trial court
so that the plaintiffs could particularize the grounds for their claim that the
cap is unconstitutional and afford the state of Louisiana and the Patient Compensation
Fund Oversight Board an opportunity to fully address and litigate the grounds alleged.
At the time of this writing, the ultimate outcome remains uncertain, and court watchers
report that it will be at least a year or two before the courts resolve the issue.
While the courts further deliberate the constitutionality of Louisiana’s cap on
non-economic damages, Democratic Party State Rep. John Bel Edwards authored the
2009 House Bill 224 (HB 224), which proposed to increase the state’s medical malpractice
cap to $750,000 by increasing the healthcare provider primary insurance requirement
from $100,000 to $150,000 and expanding the amounts for which the PCF would be responsible.
Under the bill, the non-economic damages cap would have adjusted with the Consumer
price Index every year, and the PCF would then be responsible for all judgments
or settlement over the primary layer of coverage.
While HB 224 was on the House Civil Law Committee agenda for June 2009, Rep. Edwards
pulled the bill from the committee’s agenda for a lack of support. He hopes to reintroduce
a reworked compromise bill in 2010.
Until further judicial or legislative actions are taken, the Louisiana cap on non-economic
damages will remain at $500,000.
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